What a Patent is Not

Patently BIOtech

‘Patent trolls.’  ‘Patients over patents.’  ‘Do Not Patent My Genes.’  ‘Patents ate my baby.’  Ok, so I made the last one up.  The emphasis on patents in the public discourse has reached a new high.  Yet, many commentators get the basics wrong.  Here are a few things that a patent is not.

A patent is not ownership of a thing, whether it is life, genes, viruses, computer code, or any other animate or inanimate object.  If someone were to “patent a virus” that does not mean they “own the virus.”  A patent does not give you ownership of anything.  The patent holder (i.e., usually the inventor) may only exclude others from practicing what he or she invented for a limited period of time, in return for the public disclosure of the invention so that others can use it in the future. 

A patent is a property right granted by a government to exclude others from making, using, or selling an invention for 20 years after the filing of a patent application.

A patent does provide the ability for inventors to overcome market failures caused by free-riders.  The inventor, and the inventor’s financial backers, face an immediate dilemma when trying to invent a product or service for the market place.    As soon as the inventor creates a product or service and launches it on the market, little stands in the way of someone else copying that invention and also selling it.  The inventor no longer can receive the fruits of his or her labor and the financial backers lose their investment.  Patents are designed to correct this problem by giving a time-limited property right in the invention so that investment in innovation can be recouped, while the public benefits from the new product or service and its disclosure to the world.

A patent does not create a monopoly (at least in the traditional sense of the word).  Ok, yes, government-granted rights that technically allow one to exclude others from the market temporarily is a ‘monopoly.’  However, such an expansive definition would also define the following as ‘monopolies’: deeds, mortgages, water rights, air rights, rights over your chattel, contract rights, guardianship rights, etc.

In other words, extending the “patent=monopoly” logic means you have a monopoly on your house, your car (chattel), your children, your pet, your computer, etc.  You should think about that the next time an ‘expert’ decides patent ‘monopolies’ should go away.  It may not end well for you.

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